06/28/11- - Judge blasts mandatory gun sentences in ruling

Mike McIntyre and Sarah Boesveld, National Post: A Manitoba judge who expressed sympathy for a Winnipeg man who bought a handgun to protect himself says the law gives him no choice but to jail him, a move gun advocates say highlights the need for renewed discussion about Canadians’ right to self-defence.

“I don’t condone it, but I understand why you were carrying a gun,” Court of Queen’s Bench Justice John Menzies told Kevin Everett, 22, on Monday. “I’ve really struggled with this file. It’s something that has bothered me.”

The judge sentenced Everett to 21 months in jail and one year of probation. Judge Menzies said he considered taking the highly unusual step of ignoring a joint recommendation from Crown and defence lawyers and actually imposing a lower sentence, but conceded rulings in higher courts suggest these types of plea bargains should be honoured.

Judge Menzies bemoaned mandatory jail sentences for firearm-related offences in Canada, saying a case like this shows the courts should allow some flexibility for unusual circumstances — a point echoed by Blair Hagen, executive vice-president of the National Firearms Association, who said this case is “indicative of the entire issue” in Canada about the unjust exclusivity related to gun laws when it comes to self-defence.

“The law and bureaucracy surrounding gun possession for self-defence in Canada is very antagonistic,” he said. “It very much discourages individuals … in situations where their lives are being threatened and having a gun available would be of some use.”

Police spot-checked Everett while he was walking near Winnipeg’s Central Park in November, 2008, and he immediately admitted having a loaded firearm in his waistband. He put his hands in the air and allowed police to take the weapon. Mr. Everett explained he’d already dodged several bullets since moving to the area after growing up in the remote northern Manitoba community of Tadoule Lake. He said he feared for the safety of himself, his girlfriend and his three young children and bought the Ruger handgun on the black market several months earlier. He has no prior criminal record.

Crown attorney Adam Bergen told court the fact Everett narrowly missed being hit by stray bullets in a previous shooting targeting another man should be of little consequence.

“This isn’t the Wild West and not a movie out of Hollywood,” Mr. Bergen said.

That struck a nerve with the judge: “You don’t think it’s mitigating, the fact this man is getting pursued by gangs and has been shot at in the past?”

“Nope,” replied Bergen.

“Well, I hope you’re never threatened, Mr. Bergen. I know it’s a crime, but my goodness, I can’t think of a better reason to be carrying,” the judge said.

Mr. Bergen said there have been several judgments in Canada that “resoundingly” suggest carrying a gun for protection should not be seen as a mitigating factor. “And I’m resoundingly against that opinion,” Judge Menzies said.

The crown attorney told Everett he should be proud of the fact he’s gone his entire life until now without any other brushes with the law, considering he grew up in a terrible environment on the remote northern reserve.

“I’m very sorry for carrying a weapon,” Everett said.

David Eby, executive director of the British Columbia Civil Liberties Association, said it’s unlikely the gun would have afforded Everett any true protection, considering the illegality of the act of merely carrying a gun in Canada today, let alone an unlicensed one.

“We recognize in law there is a right to self defence, but there are limits,” he said. “I don’t know how much safer people would feel if everyone were carrying a gun in Winnipeg.”

If anything, the case shines a light on the crime and poverty problem in the Winnipeg neighbourhood that is contributing to the unsafe atmosphere, he said.

“The fact that some people do feel the need to arm themselves means there is work to be done in this area.”